President Barack Obama may have won the chance to continue appointing federal district and appellate judges, but his nominees still will have to navigate the same partisan political realities on Capitol Hill that have caused so much gridlock in the past two years.
Democrats retained control of the Senate in the November 6 elections, but they still do not have the 60 votes needed to get around the Republican filibusters that have repeatedly stalled confirmation votes this year, even on noncontroversial nominees backed by Republicans.
Yet there are signs that the next couple of years might work out differently for Obama’s 35 pending federal district and appellate court nominees than the past four. Obama’s re-election did bolster their confirmation hopes, especially those who have bipartisan support, nominations experts say. Now, if judicial confirmations aren’t addressed during the upcoming lame duck session, they say, most if not all of these candidates will be renominated, and many will have a shot at being confirmed next year.
Holdover nominees who have gone through confirmation hearings will not have to endure the entire background and vetting process again if renominated. And, of course, had Mitt Romney won the election, it’s likely he would have chosen different nominees for many of these vacancies.
The lame duck session will be a harbinger of what is likely to happen to pending judicial confirmations over the next four years, said Russell Wheeler, a Brookings Institution fellow who has watched federal judicial nominations for decades.
While post-election confirmations are rare, there seems to be some outside pressure building from interest groups and the public for action before the new Congress is sworn in in January, Wheeler said. If even just a handful of nominees are confirmed this year, it would indicate smoother sailing for Obama’s nominees next year, something the administration has been predicting in a second term. “If they refuse to do that, it suggests to me we’re going to have just as much contention over judicial nominations in the next two years [as we had] in the past two years,” he said.
The Senate will be focused mainly on fiscal issues when it returns on November 13, including tax cuts that expire at the end of the year and deep proposed cuts for military spending. The 19 district and circuit court nominees who have passed out of the Senate Judiciary Committee, most by unanimous votes, are simply waiting for a vote in the full Senate and could be approved in about five minutes, Democrats have argued for months.
But if one senator objects, the cloture process to force a vote might be considered too time-consuming to pursue with the more pressing concerns at hand. Minority Leader Mitch McConnell (R-Ky.) made a statement after the election about working with the president to address fiscal issues, but he has not yet discussed with staff any plans for how Republicans will approach judicial nominations during the lame duck session, an aide said.
Senator Pat Toomey (R-Pa.) has already asked McConnell to allow votes on judges from his state, and Senator Tom Coburn (R-Okla.) told The Oklahoman last week that U.S. Court of Appeals for the Tenth Circuit nominee Robert Bacharach and Oklahoma district court nominee John Dowdell should now “fly through” the Senate.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is frustrated with the delays on confirming these consensus picks, and wants to see the two sides work together to deal with the backlog, a committee aide said.
Still, the prospect of continued gridlock prompted Senate Majority Leader Harry Reid (D-Nev.) to propose changes to Senate rules on the filibuster the day after the election. At a press conference, Reid cited the problems with the judicial confirmation process as his first and only example of how partisan the chamber has become.
“I filed cloture on 17 different judges, that’s never been done before,” Reid said. “This is no time for excuse in any way, it’s time we get to work.…That’s what the American people said last night in a big way.”
Reid did not detail any proposed filibuster changes, only saying that “the rules have been abused and that we’re going to work to change them. We’re not going to do away with the filibuster but we’re going to make the Senate a more meaningful place so we can get things done.”
Reid did say he might look at eliminating the filibuster on a motion to proceed, which prevents debate or amendments on a bill or nomination unless there are 60 votes to move forward, one of the suggested changes to Senate rules proposed by the D.C.-based Alliance for Justice and endorsed by other groups. By itself, however, that change would not make judicial confirmations any easier.
The Alliance for Justice also wants to require senators who want to block nominations to take the floor and actually filibuster, instead of the current process that allows a senator to filibuster just by announcing it. The group also proposes reducing the amount of Senate floor time required to defeat a filibuster, and flipping the burden so that 41 senators must vote to continue a filibuster rather than having 60 senators vote to end it.
“It’s absolutely clear the pattern of obstructionism will continue,” Alliance for Justice President Nan Aron said. “To end this will require rules reform on day one.” Aron also said there is widespread concern among many people, primarily lawyers, about judicial vacancies. Others have raised the objection that professional diversity ought to be a priority in the second term, looking for nominees other than prosecutors and corporate lawyers, she said.
The White House has trumpeted Obama’s record on appointing women and minorities to the bench during his first term. Still, Obama has been criticized for not nominating enough judges early in his first term, something that Aron believes will change during Obama’s second term. “He has certainly gotten the message on judges,” Aron said. “There is a renewed sense of urgency.”
Todd Ruger can be contacted at firstname.lastname@example.org.